The latest battlefront in the abortion wars: Some states want to require burial or cremation for fetuses

Tucked against a fence in an East Los Angeles cemetery, a long, flat headstone reads: “In memory of the 16,500 precious unborn, buried here, Oct. 6, 1985.”

The aborted fetuses had been found in a metal storage container repossessed from the Woodland Hills home of a former medical laboratory owner who had kept them after testing.

Abortion defenders argued that they should be incinerated as medical waste. But abortion foes wanted to give them a funeral.

In the end, the remains were buried in six wooden boxes.

The debate then was a preview of what is becoming a new front in the battle over abortion — an issue that is expected to take center stage with President Trump in the White House and Republican lawmakers consolidating their hold over Congress and statehouses across the nation.

Over the last two years, at least five states have introduced requirements that healthcare facilities bury or cremate the remains from abortions, and in some cases also from miscarriages and stillbirths.

The rules in Arkansas and North Carolina already have taken effect. Texas, Louisiana and Indiana are embroiled in lawsuits challenging their regulations, with a decision in the emotionally charged Texas case expected as soon as this week.

In those three states, court-ordered injunctions or legal negotiations have put most of the new rules on hold, though not all. Women who suffer miscarriages at hospitals in Indiana are now required to fill out forms specifying whether they intend to arrange a private cremation or burial, or if the hospital should dispose of the remains through a mass cremation.

The new regulations vary by state, but the basic idea is the same: The remains of the unborn must be treated like the remains of the born.

“A civil society does not throw the bodies of human beings into a landfill,” said Kristi Hamrick, a spokeswoman for the Washington-based Americans United for Life, which has drafted model legislation it hopes other states will adopt.

Its proposals are about “showing respect to human beings who have died before birth, no matter how that came about, by abortion, miscarriage or stillbirth,” she wrote in an email.

But advocates for abortion rights say that is an ideological viewpoint that the state has no business imposing on women. They see the regulations as part of a broader effort to curtail access to abortion by subjecting providers and their patients to ever more onerous and costly requirements.

“There is no health justification for creating a new system to handle tissue from certain medical procedures differently than from others,” said David Brown, a senior staff attorney at the Center for Reproductive Rights in New York. “Every time you create a new and parallel system, it raises expenses, it raises complications and it raises the potential for confusion or mistakes.”

In a sign of how heated the debate has become, health officials in Texas received more than 35,000 public comments about the new rules, including tearful testimony from a rape victim who was horrified at the thought of having to bury her aborted fetus and another woman who said a burial would have provided closure after her miscarriage.

Currently, most hospitals and abortion clinics contract with professional companies to dispose of fetal and embryonic tissue according to the protocols governing medical waste. Although rules vary from state to state, that typically means incinerating the remains, or putting them through a sterilization process, before placing them in landfills.

A number of states already have laws allowing grieving families to take possession of remains, if they want to hold funerals. The new rules enter more controversial terrain by requiring healthcare facilities to treat fetal remains in a similar way to dead bodies, even for pregnancies that last just a couple of weeks.

“It’s fairly transparently about recognizing that human life begins at conception,” said Tanya Marsh, an expert in funeral and cemetery law at Wake Forest University in North Carolina.

The regulations signed into law last March by Mike Pence — then the governor of Indiana and now vice president — are the most restrictive. They mandate burial or cremation, whether the remains are from an abortion, miscarriage or stillbirth.

In Texas, the rules approved by health officials in November allow disposal of fetal remains in a medical waste incinerator, provided the ashes aren’t placed in landfills.

Louisiana does not permit incineration, but the law passed there in June applies only to abortions and not miscarriages or stillbirths.

There, as well as in Indiana, the new rules also restrict donations of fetal remains for medical research — a response to heavily edited videos released in 2015 by antiabortion activists who claimed they caught Planned Parenthood officials trying to sell fetal body parts.

Under federal law, clinics are not allowed to profit from tissue used in medical research. But they can recover their costs, and investigations in 13 states produced no criminal charges.

The new mandates are the latest move by conservative lawmakers to test the limits of the 1973 Roe vs. Wade ruling by the U.S. Supreme Court that legalized abortion nationwide.

A lawsuit filed by the Center for Reproductive Rights contends that the Louisiana regulations effectively ban one of the most common ways to terminate a pregnancy — the prescribing of medications taken at home during the first trimester — by holding doctors responsible for ensuring those remains are also buried or cremated.

In Texas, the new rules were proposed days after the U.S. Supreme Court struck down two requirements of a 2013 law: that doctors who perform abortions have admitting privileges at a nearby hospital and that their clinics meet the same standards as same-day surgical centers.

In the June ruling, the court said those provisions placed an “undue burden” on women seeking abortions. But for abortion rights advocates, the ruling came too late: More than half of the state’s 41 abortion clinics already had closed, and some may never reopen.

The advocates worry that the new fetal disposition rules could put even more providers out of business.

“It’s the same kind of strategy, tying abortion providers to medically unnecessary relationships with third parties,” said Brown, who represents the plaintiffs in the current Texas lawsuit.

Advocates have identified just one Texas crematorium willing to work with abortion providers, according to testimony from Amy Hagstrom Miller, founder and chief executive of Whole Woman’s Health, which had to close two of its five Texas clinics after the 2013 law passed.

While the Texas rules allow medical waste disposal companies to incinerate fetal remains, the National Waste and Recycling Assn., a trade group, told state officials that its members are not equipped to handle the required interment or scattering of ashes.

That means that abortion providers would have to contract with funeral homes or crematoriums to do it, adding as much as $400 to the price of the procedure, according to some estimates.

Texas health officials say the increase would be much smaller because the regulations permit fetal remains to be stored and disposed of in batches.

“The rules carry out the department’s duty to protect public health in a manner that is consonant with the state’s respect for life and dignity of the unborn,” the Texas Health and Human Services Commission said in response to public comments it received.

Marsh said the legal battles over the new regulations are likely to be long and could wind up before the Supreme Court.

At the heart of these disputes is a fundamental question on which the Constitution is silent: When does life begin?

In California, remains from pregnancies that last at least 20 weeks must be buried or cremated. The remains from shorter pregnancies can be disposed of as medical waste, unless they are — in the words of the law — a “recognizable dead human fetus.”

Three decades ago, the Supreme Court had the opportunity to take up the case of the thousands of fetuses recovered from the home in California. At issue was whether Los Angeles County officials could turn over the remains to a private cemetery for a religious burial.

The justices declined the case, letting stand a state court decision that a religious ceremony would violate the constitutional separation between church and state. A Los Angeles Superior Court then agreed to let the county arrange a non-religious interment.

The fetuses were buried in an unmarked grave at the Odd Fellows Cemetery in Boyle Heights.

Hundreds of antiabortion activists, some carrying pictures of dismembered fetuses, attended the burial. Former Los Angeles County Supervisor Mike Antonovich read a message from President Reagan lamenting that “a whole category of human beings has been ruled outside the protection of the law.”

The flat tombstone was added later.

Not that many people notice it. None of the families who were at the cemetery one recent afternoon, clearing away Christmas garlands and placing fresh flowers on their loved ones’ graves, knew it existed.

“I wish they had told us,” said Gabriela Aguilera, 60, who was visiting her son’s grave, just a few yards away. “It would be nice to bring something for the babies.”

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Twitter: @alexzavis

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